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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Division Bench: Hon’ble Shri Justice S.K. Gangele
Hon’ble Shri Justice Ashok Kumar Joshi.

CRIMINAL APPEAL NO.1852 OF 2004

State of Madhya Pradesh
Versus.
Pintu @ Prayag Dutt and others
………………………………………………………………………………………………………..
Shri Prakash Gupta, Panel Lawyer for the State-Appellant.
None for the respondents.
………………………………………………………………………………………………………..

J U D G M E N T (Oral)

(06.07.2017)
Per, S.K. Gangele, J:

1. Appellant-State has filed this appeal against the judgment of
acquittal dated 30.06.2004 passed by the trial Court in Sessions Trial
No.238/1999.

2. Respondents were prosecuted for commission of offences
punishable under Sections 363, 366 (A) and 376 (1) of IPC.

3. Prosecution story in brief is that, the prosecutrix (PW-3) who was
residing with her father and mother at village Pahokher, was a married
lady. She was married with one Rajendra Vishwakarma. She left her
matrimonial home after 6-7 days of her marriage. The accused
Rambahore, Pintu @ Prayagdatt and Virendra were neighbourer of the
prosecutrix. Accused Virendra was working at Surat in a cloth Mill along
with his uncle Kamlesh. On 09.06.1999, the prosecutrix had gone with
accused Virendra to Surat and she lived there. Accused Pappu @
Rambhuvan and his father Rambahore and Anita used to threaten her. She
had also visited with Kamlesh Vishwakarma and she lived there with
Kamlesh. The allegation is that Kamlesh had committed rape with her. A
missing report of the prosecutrix was lodged on 10.06.1999. She returned
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on 13.06.1999. Thereafter, the police conducted the investigation and filed
the charge-sheet. The respondents abjured the guilt. The trial Court after
appreciation of evidence has held that the prosecution has failed to prove
the fact that the prosecutrix was minor at the time of alleged incident. The
trial Court further held that the prosecutrix had visited with the accused at
many places. She travelled in a train from Satna to Surat and from Surat
to Bombay and she lived there hence, she was a consenting party. She
was a married woman. On the basis of aforesaid findings, the trial Court
acquitted the respondents from the offences as mentioned above .

4. To prove the age of the prosecutrix, the prosecution produced
document (Ex.P.15), it’s a copy of Dakhila Kharij register. In the aforesaid
register, the date of birth of the prosecutrix has been mentioned as
08.10.1982. (PW-10) Ramesh Kumar Mishra, was examined to prove
the register. The prosecution had also examined the then Headmaster of
the School. (PW-10) Ramesh Kumar Mishra, who deposed that he had
brought the scholar register of 1993-1994 and in the aforesaid register,
the date of birth of the prosecutrix is mentioned as 08.10.1982. She was
admitted in the middle School on 27.07.1994 after passing 5 th Class
examination and she passed 8th Class from that School. Mr. Radha Mohan,
who was the Headmaster of the School at the relevant time, signed the
register and the transfer certificate. He further deposed that Scholar
register was not prepared before him and Mr. Radha Mohan signed against
the date of birth of the prosecutrix and he could identify the signature of
Mr. Radha Mohan. He further deposed that date of birth of the prosecutrix
was recorded on the basis of 5th class certificate.

5. Father of the prosecutrix (PW-5) Ramkalyan deposed that the
prosecutrix was aged about 16 years at the time of incident. In his cross-
examination, he admitted the fact that the prosecutrix was married and
she was not married at the age of minor. It means that she was a major at
the time of marriage. In para 8 of his cross-examination, he further
admitted the fact that he did not know when the prosecutrix was born and
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what was her age. He admitted the fact that at present his age is 40
years.

6. Mother of the prosecutrix (PW-4) Kamla admitted the fact in her
cross-examination that prosecutrix was married two years before the
incident and her ‘Gouna’ was also performed at the time of marriage. She
further admitted the fact that she did not know the date of birth of the
prosecutrix and father of the prosecutrix (PW-5) had gone to the School
for admission of the prosecutrix and he must have mentioned the date of
birth of the prosecutrix.

7. (PW-1) Dr. B.K. Tiwari, deposed that he was posted as Medical
Officer in X-ray Department of the Hospital on 22.06.1999 and he
conducted the X-ray of the prosecutrix. He further deposed that as per X-
ray report, the prosecutrix was aged above 16 years and below 18 years.
He further admitted in his cross-examination that the age could be 18
years and there may be a variation of two years on either side in the age
of the prosecutrix.

8. On the basis of aforesaid evidence, the trial Court has recorded the
finding that the prosecution has failed to prove that the age of the
prosecutrix was 16 years at the time of incident. The Scholar register in
which the date of birth of the prosecutrix is mentioned as 08.10.1982, has
not been proved properly. The then Headmaster who recorded the date of
birth of the prosecutrix was not examined neither his signature was
verified. The then posted Headmaster was examined. He simply stated
that he know the signature of the then Headmaster. The School leaving
certificate of 5th Class and original register in which the date of birth of
the prosecutrix was mentioned of primary school were not produced.

9. (PW-4) mother of the prosecutrix deposed that her father (PW-5)
had gone to the School at the time of admission. Father (PW-5) admitted
the fact that he could not remember the date of birth of the prosecutrix.
Both father and mother admitted the fact that the prosecutrix was a
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married woman. Mother of the prosecutrix specifically deposed that the
prosecutrix was married two years before the incident and father admitted
the fact that the prosecutrix was major at the time of marriage.

10. In this view of the matter, in our opinion, the findings recorded by
the trial Court that the prosecutrix was major at the time of alleged
incident, is in accordance with law.

11. The next question for consideration whether the accused persons
had abducted the prosecutrix and any forceful sexual intercourse was
committed by the accused with her.

12. (PW-3) prosecutrix deposed that before the incident she had met
with the accused persons at many times. There was a photograph taken
by accused Virendra and he threatened her that he would show the photo
to her family members. She had gone on the date of incident in the night
near river along with Anita. She further deposed that I had met
Rambhuvan, Prayagdatt, Hari and Rambahore near river. Aforesaid
persons had taken me to Satna in a jeep. From Satna she had gone to the
house of Bhagwandeen and Baijnath and thereafter, Pintu and Pappu told
by Baijnath that they were taking her to Surat. In the shop of
Bhagwandeen, Pappu and Chintu committed rape with me. Thereafter, I
had gone to Surat with Baijnath and Bhagwandeen in a train and reached
third day at Surat. At Surat Virendra, Kamlesh, Shatughan and Kamlesh
Kol were present. Thereafter, they had taken me to a room to Baijnath
and Bhagwandeen. Baijnath and Bhagwandeen had committed rape with
me at Surat and then, they returned back and accused Virendra had
committed rape with me. On the next day, Kamlesh had taken me to
Bombay and at Bombay I lived in a room. Kamlesh had purchased utensils
from the market and thereafter, Kamlesh had committed rape with me and
Munnilal had also committed rape with me. Thereafter, Munnilal had taken
me to Maihar by train and he had run away and I told the story to my
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uncle and thereafter, report of the incident was lodged at the Police
Station.

13. From the evidence of prosecutrix, it is clear that the prosecutrix (Pw-

3) had gone to Surat in a train from Satna. She travelled near about two
days in the train. However, she did not raise any hue and cry in the train.
Neither told any person that she was being forcefully abducted. She had
lived at Satna and thereafter at Surat. During travel she did not raise any
hue and cry that she was being taken forcefully. She could have easily
narrated the incident to the persons who were travelling along with her in
the train. Prosecutrix also travelled in a train from Mumbai to Maihar. In
that long travelling period, she did not narrate story to any other person
neither raised any hue and cry. She was a married woman. There is a
evidence of only prosecutrix to this effect.

14. Father and mother of the prosecutrix deposed that the prosecutrix
had left the home and other evidence is based on the facts narrated by
the prosecutrix.

15. The apex Court in the matter of Mohd. Ali @ Guddu vs State of
Uttar Pradesh reported in (2015) 7 SCC 272 has held in regard to
conviction on the basis of sole testimony of the prosecutrix.

“27. Be it clearly stated here delay in lodging FIR in
cases under Section 376 IPC would depend upon facts of
each case and this Court has given immense allowance to
such delay, regard being had to the trauma suffered by the
prosecutrix and various other factors, but a significant one,
in the present case, it has to be appreciated from a different
perspective. The prosecutrix was missing from home. In
such a situation, it was a normal expectation that either the
mother or the brother would have lodged a missing report at
the police station. The same was not done. This action of
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PW-2 really throws a great challenge to common sense. No
explanation has been offered for such delay. The learned
trial Judge has adverted to this facet on an unacceptable
backdrop by referring to the principle that prosecutrix
suffered from trauma and the constraint of the social
stigma. The prosecutrix at that time was nowhere on the
scene. It is the mother who was required to inform the
police about missing of her grown up daughter. In the
absence of any explanation, it gives rise to a sense of doubt.

28. That apart, the factum that the appellant informed the
mother of the victim that he had left the prosecutirx at the
door of her house also does not command acceptance. The
recovery of the prosecutrix by the brother and her friends
also creates a cloud of suspicion. We are not inclined to
believe the prosecution version as has been projected that
one Arif had informed the brother of the prosecutirx that his
sister was at his place but for reasons best known to the
prosecution, Arif has not been examined. That apart, the
persons who were accompanying the brother have also not
been examined by the prosecution. Thus, the manner of
recovery of the prosecutrix from the house of Arif remains
a mystery.

29. Be it noted, there can be no iota of doubt that on the
basis of the sole testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a conviction can be
based. In the case at hand, the learned trial Judge as well as
the High Court have persuaded themselves away with this
principle without appreciating the acceptability and
reliability of the testimony of the witness. In fact, it would
not be inappropriate to say that whatever the analysis in the
impugned judgment, it would only indicate an impropriety
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of approach. The prosecutrix has deposed that she was
taken from one place to the other and remained at various
houses for almost two months. The only explanation given
by her is that she was threatened by the accused persons. It
is not in her testimony that she was confined to one place.
In fact, it has been borne out from the material on record
that she had travelled from place to place and she was
ravished number of times. Under these circumstances, the
medical evidence gains significance, for the examining
doctor has categorically deposed that there are no injuries
on the private parts. The delay in FIR, the non- examination
of the witnesses, the testimony of the prosecutrix, the
associated circumstances and the medical evidence, leave a
mark of doubt to treat the testimony of the prosecutrix as so
natural and truthful to inspire confidence. It can be stated
with certitude that the evidence of the prosecutrix is not of
such quality which can be placed reliance upon.

30. True it is, the grammar of law permits the
testimony of a prosecutrix can be accepted without any
corroboration without material particulars, for she has to be
placed on a higher pedestal than an injured witness, but, a
pregnant one, when a Court, on studied scrutiny of the
evidence finds it difficult to accept the version of the
prosecutrix, because it is not unreproachable, there is
requirement for search of such direct or circumstantial
evidence which would lend assurance to her testimony. As
the present case would show, her testimony does not inspire
confidence, and the circumstantial evidence remotely do
not lend any support to the same. In the absence of both, we
are compelled to hold that the learned trial Judge has
erroneously convicted the accused-appellants for the
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alleged offences and the High Court has fallen into error,
without re-appreciating the material on record, by giving
the stamp of approval to the same.”

16. The apex Court has specifically held that the prosecutrix was taken
from one place to another and remained at various places for almost two
months and she travelled from place to place and she did not reveal the
facts at the time of travelling.

17. In the present case, (PW-2) Dr. B.K. Tiwari, who had examined the
prosecutrix deposed that on examination, she noticed that hymen of
prosecutrix was old torn. There were no signs or abrasions or any other
injury on the private part of the prosecutrix or on her body. She was
habitual for sexual intercourse.

18. The apex Court in the matters of Ghurey Lal vs. State of Uttar
Pradesh, reported in (2008) 10 SCC 450 and Dhanpal vs State,
reported in 2009 (10) 401, laid down the principle of law that if two
views are possible, then appellate Court will not interfere in the judgment
of acquittal passed by the trial Court.

19. In this view of the matter, in our opinion, there is no merit in this
appeal. It is hereby dismissed.

(S.K. Gangele) (Ashok Kumar Joshi)
Judge Judge

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